Healthcare Policy & Economics

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In terms of national constitutions, a 2004 survey reported that some two-thirds of constitutions worldwide address health or health care, and that almost all of these do so in universal terms, rather than being limited to certain populations.13 For example, consider the health-related constitutional aspects of four politically and culturally diverse countries—Italy, the Netherlands, South Africa, and Poland—that have some type of “right to health”: Italy’s Constitution guarantees a right to health; under the Dutch Constitution, the government is mandated “to promote the health of the population”; the Constitution of South Africa imposes on government the obligation to provide access to health services; and under Polish constitutional law, citizens are guaranteed “the right to health protection” and access to publicly financed healthcare services.14

Of course, including language respecting health rights in a legal document—even one as profound as a national constitution—does not guarantee that the right will be recognized or enforced. As in the United States, multiple factors might lead a foreign court or other tribunal to construe rights- creating language narrowly or to refuse to force implementation of what is properly considered a right. Examples of these factors include the relative strength of a country’s judicial branch vis-a-vis other branches in its national governance structure and a foreign court’s view of its country’s ability to provide services and benefits inherent in the health right.

BOX 6-2 Discussion Question

Depending on one’s personal experience in obtaining health care, or one’s view of the role of physicians in society, of law as a tool for social change, of the scope of medical ethics, or of the United States’ place in the broader global community, the no-duty principle might seem appropriate, irresponsible, or downright wrong. Imagine you are traveling in a country where socialized medicine is the legal norm, and your discussion with a citizen of that country turns to the topic of your countries’ respective health systems. When asked, how will you account for the fact that health care is far from being a fundamental right rooted in American law?

108 109 INDIVIDUAL RIGHTS AND THE HEALTHCARE SYSTEM

The “global perspective” you just read was brief for two reasons. First, a full treatment of international and foreign health rights is well beyond the scope of this chapter, and second, historically speaking, international law has played a limited role in influencing this nation’s domestic legal principles. As one author commented, “Historically the United States has been uniquely averse to accepting international human rights standards and conforming national laws to meet them.”15(p1156) This fact is no less true in the area of health rights than in any other major area of law. As described earlier in this chapter, universal rights to health care are virtually nonexistent in the United States, even though this stance renders it almost solitary among industrialized nations of the world.

This is not to say that this country has not contemplated health care as a universal, basic right. For instance, in 1952, a presidential commission stated that “access to the means for attainment and preservation of health is a basic human right.”16(p4) Medicaid and Medicare were the fruits of a nationwide debate about universal healthcare coverage. And during the 1960s and 1970s, the claim that health care was not a matter of privilege, but rather of right, was “so widely acknowledged as almost to be uncontroversial.”17(p389) Nor is it to say that certain populations do not enjoy healthcare rights beyond those of the general public. Prisoners and others under the control of state governments have a right to minimal health care,18 some state constitutions expressly recognize a right to health or healthcare benefits (for example, Montana includes an affirmative right to health in its constitution’s section on inalienable rights), and individuals covered by Medicaid have unique legal entitlements. Finally, it would be inaccurate in describing healthcare rights to only cover rights to obtain health care in the first instance, because many important healthcare rights attach to individuals once they manage to gain access to needed healthcare services.

The remainder of this section describes more fully the various types of individual rights associated with the healthcare system. We categorize these rights as follows:

1. Rights related to receiving services explicitly provided under healthcare, health financing, or health insurance laws; for example, the Examination and Treatment for Emergency Medical Conditions and Women in Labor Act, Medicaid, and the Affordable Care Act. 2. Rights concerning freedom of choice and freedom from government interference when making healthcare decisions; for example, choosing to have an abortion. 3. The right to be free from unlawful discrimination when accessing or receiving health care; for example, Title VI of the federal Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin by entities that receive federal funding.12(p12),19 Rights Under Healthcare and Health Financing Laws

We begin this discussion of rights-creating health laws with the Examination and Treatment for Emergency Medical Conditions and Women in Labor Act (also referred to as EMTALA, which is the acronym for the law’s original name—the Emergency Medical Treatment and Active Labor Act—or, for reasons soon to become clear, the “patient anti-dumping statute”). We then briefly discuss the federal Medicaid program in a rights- creating context and wrap up this section with a brief discussion of the ACA.

Rights Under Health Care Laws: Examination and Treatment for Emergency Medical Conditions and Women in Labor Act

Because EMTALA represents the only truly universal legal right to health care in this country—the right to access emergency hospital services—it is often described as one of the building blocks of health rights. EMTALA was enacted by Congress in 1986 to prevent the practice of “patient dumping”—that is, the turning away of poor or uninsured persons in need of hospital care. Patient dumping was a common strategy among private hospitals aiming to shield themselves from the potentially uncompensated costs associated with treating poor and/or uninsured patients. By refusing to treat these individuals and instead “dumping” them on public hospitals, private institutions were effectively limiting their patients to those whose treatment costs would likely be covered out-of-pocket or by insurers. Note that the no-duty principle made this type of strategy possible.

EMTALA was a conscious effort on the part of elected federal officials to chip away at the no-duty principle: By creating legally enforceable rights to emergency hospital care for all individuals regardless of their income or health insurance status, Congress created a corresponding legal duty of care on the part of hospitals. At its core, EMTALA includes two related duties, which technically attach only to hospitals that participate in the Medicare program (but then again, nearly every hospital in the country participates). The first duty requires covered hospitals to provide an “appropriate” screening examination to all individuals who present at a hospital’s emergency department seeking care for an “emergency medical condition.” Under the law, an appropriate medical 109110screening is one that is nondiscriminatory and that adheres to a hospital’s established

emergency care guidelines. EMTALA defines an emergency medical condition as a

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emergency care guidelines. EMTALA defines an emergency medical condition as a

medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part; or with respect to a pregnant woman who is having contractions, that there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child.20

The second key duty required of hospitals under EMTALA is to either stabilize any condition that meets the above definition or, in the case of a hospital without the capability to treat the emergency condition, undertake to transfer the patient to another facility in a medically appropriate fashion. A proper transfer is effectuated when, among other things, the transferring hospital minimizes the risks to the patient’s health by providing as much treatment as is within its capability, when a receiving medical facility has agreed to accept the transferred patient, and when the transferring hospital provides the receiving facility all relevant medical records.

The legal rights established under EMTALA are accompanied by heavy penalties for their violation. The federal government, individual patients, and “dumped on” hospitals can all initiate actions against a hospital alleged to have violated EMTALA, and the federal government can also file a claim for civil money penalties against individual physicians who negligently violate an EMTALA requirement.

Rights Under Healthcare Financing Laws: Medicaid

Many laws fund programs that aim to expand access to health care, such as state laws authorizing the establishment of public hospitals or health agencies, and the federal law establishing the vast network of community health clinics that serve medically underserved communities and populations. However, the legal obligations created by these financing laws are generally enforceable only by public agencies, not by individuals.

The Medicaid program is different in this respect. (Medicaid has been covered elsewhere in greater depth, but because of its importance in the area of individual healthcare rights, we mention it also in this context.) Although most certainly a law concerning healthcare financing, Medicaid is unlike most other health financing laws in that it confers the right to individually enforce program obligations through the courts.21(pp419–424) This right of individual enforcement is one of the reasons why Medicaid, nearly 50 years after its creation, remains a hotly debated public program. This is because the legal entitlements to benefits under Medicaid are viewed as a key contributor to the program’s high cost. Yet whether Medicaid’s legal entitlements are any more of a factor in the program’s overall costs than, say, the generally high cost of health care, is not clearly established.

Rights Under Health Insurance Laws: The Affordable Care Act

As you will learn in subsequent chapters, the ACA is far more than a law that just concerns health insurance; in fact, it is a sweeping set of reforms that touch on healthcare quality, public health practice, health disparities, community health centers, healthcare fraud and abuse, comparative effectiveness research, the health workforce, health information technology, long-term care, and more. However, for purposes of this chapter, we mention it briefly it in terms of its impact on the rights of individuals to access health insurance and to equitable treatment by their insurer. Details concerning the ACA’s effect on the public and private insurance markets are discussed elsewhere.

Through a series of major reforms to existing policies, the ACA reshapes the private health insurance market, transforming private health insurance from a commodity that regularly classified (and rejected) individuals based on their health status, age, disability status, and more into a social good whose availability is essential to individual and population health.22 The key elements of this shift include: a ban on exclusion and discrimination based on health status or pre-existing health conditions; new protections that ensure that, once covered by insurance, individuals will have access to necessary care without regard to artificial annual or lifetime expenditure caps; a guarantee that once insurance coverage is in place, it cannot be rescinded except in cases of applicant fraud; a ban on additional fees for out-of-network emergency services; the provision (by 2019) of financial subsidies for an estimated 19 million low- and moderate-income individuals and for some 4 million small businesses; the inclusion, in the individual and small group insurance markets, of a package of “essential health benefits” that must be covered; and the creation of state health insurance “exchanges” through which individuals and small employer groups can purchase high-quality health